A List of the Common Mistakes that Attorneys Make in Probate Cases

September 22, 2011

Mistake: Failure to be knowledgeable of the Code provisions and Court Rules governing the matters in which they are practicing. We see far too many attorneys who are not aware of the tools available to them and their clients through the Code and Rules.

Mistake: Failing to maintain up to date Court Rules and Code provisions, and failing to read appellate and court decisions as they are released. Changes occur with surprising frequency.

Mistake: Accepting compensation in cases requiring Court approval, which may lead to disbarment. The statutory and/or rule requirements are complex. In one instance an attorney may be paid for decedents dying on one day, while accepting fees in a case for decedents dying the previous day may lead to disbarment.

Mistake: Failing to quickly and properly take control of and protect estate assets. This is especially critical for real estate, which must be properly insured, secured against break-ins if vacant, and protected against loss for nonpayment of taxes and mortgages.

Mistake: Failing to prepare an accurate inventory of assets, which should only reflect assets that have actually been collected and placed under the control of the fiduciary.

Mistake: When preparing accounts, failing to use proper schedules; failing to place entries on proper schedules; failing to adequately describe receipts and disbursements; lumping entries instead of itemizing them; and failing to correctly show carrying and market values, gains, losses, dividends, and interest payment for investments.

Mistake: Failure to respond promptly and completely to filing deadlines, Court orders and Probate Auditing Branch requirement letters.

Mistake: Failure to secure an increase in bond upon marshaling additional assets, or being in control of assets that have increased to a value, bringing the value of the estate to an amount which is in excess of the current bond.

Mistake: Failure to take exclusive control of an estate's cash by permitting the ward, or another person, to have access to an ATM, debit or credit card, bank account, or more cash than the ward is able to account for.

Mistake: Failing to secure and retain adequate documentation of expenses, or failing to have a client fiduciary do the same, especially where expenses are paid for with cash or automatic debits.

Mistake: Failing to bank with an institution that returns cancelled checks, or provides electronic access to the front and back of checks.

Mistake: Paying for expenses with money orders and certified funds, since it is extremely difficult to secure copies of these negotiated instruments.

Mistake: Failing to promptly, routinely, and effectively prepare and distribute accountings for estate assets to interested persons. Keeping those entitled to accounts informed of the status of the estate reduces complaints.

Mistake: Failing to maintain and periodically communicate adequately detailed billing statements in increments of a tenth of an hour.

Mistake: Convoluting the accounting paper trail by using cash, personal checks, money orders, or credit cards to make purchases, followed by reimbursement from estate assets, rather than directly making all expenditures with estate assets.

Mistake: Failing to recognize situations where the attorney is in over their head, and too personally involved. The attorney ineffectively tries to save a situation instead of consulting more experienced counsel, or seeking immediate court resolution.

Mistake: Failing to aggressively take continuing legal education courses in probate, real estate, and related areas, and failing to regularly consult with more experienced counsel on difficult issues after conducting appropriate research.

Mistake: Failing to segregate and properly title estate bank and investment accounts.

Mistake: Failing to secure prior Court authority for expenditures and investments in guardianships of minors and old law conservatorships.

Mistake: Failing to secure Court approval on real estate sales in old law conservatorships, guardianships of minors, old law decedent estates, and other cases wherein restrictions have been placed on the sale of estate realty.

Mistake: Failing to understand that the attorney represents the fiduciary (trustee, personal representative) and not the estate, even though the client has obligations as a fiduciary to the estate beneficiaries.

Mistake: Failure to expeditiously and independently secure and verify financial accounts and transactions with documentation from the source financial institutions, instead of waiting on the previous fiduciary or person in control of the assets to turn over the documentation. We have encountered expertly altered documents in the age of computers and scanners.

Mistake: Failure to effectively protect real property, in the case of conservatorships, by filing letters of conservatorship with the Recorder of Deeds in order to prevent an unauthorized sale or encumbrance of the property.

Mistake: If appointed co-conservator or co-personal representative, failing to regularly monitor accounts to insure that the other fiduciary has not improperly accessed the assets.

Mistake: Failure to properly distribute assets that are payable to a minor in a decedent’s estate.

Mistake: Failure to properly annotate distribution In decedent's estates by paying expenses for an heir instead of giving the heir the funds and letting the heir pay the expense; by failing to secure signed receipts for all disbursements to heirs or legatees; and by failing to secure social security numbers for all recipients.

Mistake: Failure to file applicable state and federal personal and estate tax returns.

Mistake: Failing to ascertain all of the heirs entitled to notice and/or distributions in a decedent's estate. We have encountered numerous estates where heirs were omitted because enough questions were not asked. Attorneys are informed that the Court Rules and Code provisions take precedence over the views expressed above.

No part of this list should be cited as authority to the Court.

From the Desk of the Auditor-Master of the D.C. Superior Court. More information about the Auditor-Master can be found online at www.dccourts.gov/dccourts/superior/auditor.jsp.